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The Applicant Guidebook is not finished, but will it be approved?

Kevin Murphy, May 31, 2011, 11:24:38 (UTC), Domain Policy

ICANN has published the seventh version of its Applicant Guidebook – no longer “draft” and no longer “proposed final” – for the new generic top-level domains program.
It’s arguably unfinished in its current state, but it looks like it’s being positioned for approval in just a few weeks, at ICANN’s planned June 20 board of directors meeting in Singapore.
One of ICANN’s stated aims was to provide a gTLD evaluation process that was not only uniform but also predictable. Applicants needed to know what they’re getting into before applying.
On the latter grounds, today’s Guidebook arguably fails.
The most notable change since the April draft is, for my money, the addition of text warning that ICANN may make binding changes to the Guidebook after the application process has started.
The very last paragraph of the document (pdf), the new fourteenth entry in the Terms & Conditions, is worth quoting is in its entirety:

ICANN reserves the right to make reasonable updates and changes to this applicant guidebook and to the application process at any time by posting notice of such updates and changes to the ICANN website, including as the possible result of new policies that might be adopted or advice to ICANN from ICANN advisory committees during the course of the application process. Applicant acknowledges that ICANN may make such updates and changes and agrees that its application will be subject to any such updates and changes. In the event that Applicant has completed and submitted its application prior to such updates or changes and Applicant can demonstrate to ICANN that compliance with such updates or changes would present a material hardship to Applicant, then ICANN will work with Applicant in good faith to attempt to make reasonable accommodations in order to mitigate any negative consequences for Applicant to the extent possible consistent with ICANN’s mission to ensure the stable and secure operation of the Internet’s unique identifier systems.

My translation: 1) this baby is probably going to get approved before it’s finished, 2) we may spring a new policy on you after you’ve already laid down your $185,000 and 3) if the new policy screws with your application, we may give you special privileges.
Not much predictability there, but ample scope for controversy.
The new version of the Guidebook makes a reasonable attempt at highlighting some areas where it’s not ready, and where new policies may emerge, with placeholder text.
For example, the Guidebook notes that “ICANN may establish a means for providing financial assistance to eligible applicants” but does not say how much, or who will be eligible.
This developing nation support mechanism is currently one of the Governmental Advisory Committee’s biggest concerns, but it looks like it’s destined to be dealt with in a parallel process, possibly after the Guidebook has been approved.
In addition, prices for evaluation procedures such as the Registry Services Review and the Community Priority Evaluation have not yet been set, because contractors have not been selected.
Those two unresolved issues mean that the Guidebook as it stands today does not even inform several categories of applicant how much they can expect to pay to apply.
There’s continued uncertainty over objections procedures, also. The process whereby the GAC can object to applications has not yet been finalized. The Guidebook notes:

The GAC has expressed the intention to create, in discussion with the ICANN Board, “a mutually agreed and understandable formulation for the communication of actionable GAC consensus advice regarding proposed new gTLD strings.”

So if you’re thinking about a potentially sensitive string (.gay, .god), or a gTLD for a regulated industry (.bank, .pharma), the Guidebook currently offers limited visibility into the extent that your fate would be in the hands of national governments.
If you’re a .brand applicant, and you want to use domains such as europe.brand or usa.brand, the Guidebook currently offers no guidance on how those restricted geographic terms can be released for use. It says further policy work is needed.
Given the updated Ts&Cs quoted above, and the new section “1.2.11 Updates to the Applicant Guidebook”, which says pretty much the same thing, it looks like ICANN staff have prepared a document they expect the board to approve just three weeks from now.
The schedule for the Singapore meeting, published overnight, sets aside a 90-minute slot for the board to convene to discuss the Guidebook on June 20. It says:

In this session ICANN Board of directors will evaluate the current status of the New gTLD Program and consider the approval of the Final Applicant Guidebook.

My hunch is that we’re looking at some kind of face-saving “approval with caveats” resolution, leaving the Guidebook in a technically “approved” state but still open to significant amendments.
That’s if the GAC will let it, of course.
The new Guidebook makes a few cosmetic changes to its trademark protection mechanisms, but not much that seems to address the GAC’s specific outstanding concerns. Nor does it accept the GAC’s latest recommendations related to its objections powers.
Whether this is an indication that ICANN has given the GAC as much as it is prepared to, or an indication that changes could still be made, remains to be seen.

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Comments (3)

  1. How the GAC could derail new TLDs in Singapore | DomainIncite - Domain Name News & Opinion says:
    June 1, 2011 at 2:06 pm

    […] The Applicant Guidebook is not finished, but will it be approved? […]

    Reply
  2. How the GAC could derail new TLDs in Singapore | Domain Industry News says:
    June 1, 2011 at 2:42 pm

    […] made few concessions to the GAC’s biggest concerns in the latest Applicant Guidebook, which begs the question of whether the United States will now be asked to play its trump […]

    Reply
  3. Final gTLD Applicant Guidebook expected this week | Domain Industry News says:
    July 25, 2011 at 2:03 pm

    […] The Applicant Guidebook is not finished, but will it be approved? […]

    Reply

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